SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
TM v THE KING
[2024] SASCA 5
Judgment of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice Kimber)
8 February 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - GENERAL PRINCIPLES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - EVIDENCE
CRIMINAL LAW - EVIDENCE - COMPLAINTS - OTHER MATTERS
CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY
Following a trial by Judge alone, the applicant was found guilty of six counts of rape committed over a period of about 13 years. The complainant was the partner of the applicant. There was evidence of an initial complaint with respect to Count 6. The complaint was made to a friend of the complainant and there were differences in the evidence of the complainant and the friend, including as to what the complainant said. The applicant did not give evidence. In submitting at trial that the prosecution had not proven any count beyond a reasonable doubt, the applicant relied on what were said to be inconsistencies in the evidence of the complainant and other criticisms of her evidence.
The applicant appeals his convictions on three grounds. The three grounds advance several complaints which include the following contentions. That the trial Judge erred in his approach to the evidence of initial complaint, including by failing to give that evidence limited weight; not limiting the use of the initial complaint to Count 6; and in failing to direct himself in the terms set out in s 34M(4)(c) of the Evidence Act 1929 (SA). That the trial Judge erred in his evaluation of the credibility and reliability of the complainant, including by not considering the whole of the evidence; failing to appreciate that a finding that the complaint was credible and reliable was not sufficient to establish guilt; and by engaging in circular reasoning. That the trial Judge engaged in inadequate reasoning or, in the alternative, that the reasons were inadequate.
Held per the Court, granting permission to appeal and dismissing the appeal:
1.The trial judge did not err in his approach to the evidence of initial complaint. It was open to the trial Judge to accept the evidence of the complainant where it differed to that of the friend to whom the complaint was made. Having done so, there was no obligation to give the initial complaint limited weight. The directions in s 34M(4)(c) were not given, but they are not mandatory in trial by Judge alone. In the circumstances of this case, there is no error in the trial Judge not directing himself in terms consistent with that sub-section. The trial Judge limited the use of the evidence of initial complaint to Count 6.
2.The trial Judge did not err in his assessment of the credibility and reliability of the complainant. The trial Judge did not fail to…
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CaseChat Overview and Summary
The legal issues before the court included the admissibility and weight of evidence relating to an initial complaint made by the complainant, EN, to a friend, AT, concerning an alleged sexual assault. The court was required to consider the discrepancies between EN's account of the complaint and AT's account, and how these discrepancies affected the assessment of EN's credibility and the overall evidence presented at trial. The applicant also raised contentions regarding the trial judge's approach to the evidence, which the court considered in its determination.
The court's reasoning focused on the evidence of the initial complaint, noting that while there were differences in the precise details of the conversation between EN and AT, both agreed that EN had spoken about sexual activity with the applicant and expressed that she did not want it to occur. The court found that these discrepancies did not render EN's evidence unreliable, particularly in the context of a guilty plea where the applicant had admitted the conduct. The court applied principles relating to the admissibility of complaints in sexual offence cases and the assessment of credibility, ultimately concluding that the trial judge's approach was sound.
Permission to appeal was granted, but the appeal itself was dismissed.
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Evidence
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